Tue February 14, 2012

Redistricting Experts Struggle to fix Maps, Elections

The federal judges who asked attorneys to negotiate a deal on political maps for this year's elections instead got a day of explanations and arguments about why no such agreement has been made.

Through mid-afternoon, the topic of specific primary dates hadn't even come up in the hearing on congressional and legislative redistricting. The only reference to those elections came when Joe Nixon, an attorney for U.S. Rep. Joe Barton, R-Ennis, told the judges they should wait for another court's ruling before proceeding. That would kill chances for an April primary, and the judges reacted with some incredulity and surprise.

The judges called the attorneys into session to try to get congressional and legislative maps drawn in time to hold primaries in April. The state's primaries were set for March 6 and got delayed because no legal maps were ready. And the new date — April 3 — slipped away for the same reason. If the judges can put maps in place by early next week, it would be at least theoretically possible to hold primaries in late April. If not, the legislative and congressional elections will probably slide to late May.

It was clear from the outset that the attorneys for the various factions — and there are factions within factions on both sides of the courtroom — had not agreed on maps. The state proposed maps last week and won an endorsement from a major plaintiff. But having the Texas Latino Redistricting Task Force on board wasn't enough.

The judges didn't reject that proposed map — in fact, they went out of their way to say it hadn't been rejected — but the remaining disagreements over maps prompted them to get the attorneys back into the John Wood Federal Courthouse to try to hammer out a deal.

The judges wanted to know where negotiations stood, and the state started out by saying that there are "insurmountable" differences over coalition districts. The state's position is that the law doesn't require creation of districts where minorities can combine to form majorities and without such a requirement, there's no reason for the state to draw those.

Some of the plaintiffs argued that such districts should be added in Dallas-Fort Worth and other areas of the state. Other plaintiffs argued that the state's proposal unfairly fractures Latino communities. David Mattax, the state's lead attorney, called that a "too cute" way to try to get some new coalition districts into the maps.

He said the creation of new coalition districts is really an attempt to create and protect new Democratic seats. And he said that would mean the Voting Rights Act was being used to protect parties. "That would mean that every single Democratic district in the state of Texas is a protected district," he said.

It didn't take long for the attorneys to start talking about the specific districts that stymied the negotiators. "I'm a little uncomfortable with all of the details that have been exposed here in this discussion," said Jose Garza, an attorney for the Mexican American Legislative Caucus.

But the details kept coming, in a hearing on proposed districts and how they would and wouldn't affect voters, whether because of race, party or geography.

Mattax said there was no evidence of racial motivations behind the mapping in the Dallas-Fort Worth area. But later in the hearing, he was asked how he was supposed to tell the difference, if the effect was the same.

Garza told the court that the state's proposed settlement includes 50 minority opportunity districts — districts where minority voters have the opportunity, in election law parlance, to elect the candidates of their choice — while a map proposed by MALC has 51 such districts. He denied that the group is trying to maximize the number of Latino seats, saying that he could draw a map with 53 or 54 such seats if that were true.

Rick Gray, an attorney for the so-called Perez plaintiffs — told the court that the state never invited his group to the negotiations. He said the state is trying to settle only the claims raised under the Voting Rights Act, while ignoring constitutional claims raised by his group and others. He gave a long presentation of what the maps should look like; for instance, he said, Anglos make up 33 percent of the population in Dallas County, but the state's maps make them dominant in eight of that county’s 14 seats.

Gray said he's not arguing for coalition districts, but he said the number of minority opportunity districts on the maps would increase if fractured minority communities were restored. The judges asked if he wasn't making wholesale changes to the map — the Supreme Court frowned on an earlier map that did just that. And the state pounced on that: Mattax said the state's proposal changed 27 House districts on the maps approved by the Legislature, while Gray's map changed 65. He also argued that for all its changes, Gray's map didn't add any minority districts. Instead, he said, it created new coalition districts that don't have to be there.

Nina Perales, director of litigation for MALDEF — one of the groups that signed off on the state's proposal — said the Legislature's map followed racial lines in several districts. She showed a map of El Paso, saying the districts drawn there were cut on racial lines, ignoring the city's geography and its precinct lines.

She defended a new congressional district in the Dallas-Fort Worth area, saying Congressional District 33 isn't a coalition district, in part because blacks and Latinos "almost always prefer different candidates." She said the Anglos in that district "tend not to participate in very large numbers."

The court circled back to Congressional District 25, which other plaintiffs have tried to protect as a coalition district. Perales said it's not one and because of that, saw no need to try to protect it during the negotiations. "A lot of this is about partisanship," she said. "The task force has striven to stay out of partisanism and incumbent protection."

The judges said the hearing will continue on Wednesday but will end there. If they're to get maps in time for April, election administrators have said they will have to finish by next week.